"New Medievalism", functional differentiation, and the fragmentation of the international legal order
It has been common among a minority of IR researchers to point to a “New Medievalism” when attempting to map the recent developments in international relations.2 As in the Middle Ages, law seems to escape the territorial caging of the state and go “with the person” rather than with the land. The former “subject” owing allegiance to one sovereign is often displaced by the person having several passports, paralleling in a way the complicated rules of attribution that bestow “nationality” on artificial persons such as corporations (place of incorporation, siege social, and so on). Actors might even subject themselves to rules that trans-national professional associations developed, or which public/private partnerships have codified (vide e.g. ISO standards, Basle II, ILO standards, etc.), thereby undermining the centrality of the state and impairing its capacity to set the terms of interaction through legislation.
These developments are sometimes welcomed as innovative forms of organizing social life. As networks or multi-level governance structures they try to cope with practical problems of globalization, attesting thus to the “de-nationalization” of politics (Zurn 2005). Sometimes these trends become part of an even more encompassing narrative of “progress”, or “evolution”, that takes humanity from segmentary forms of societies - exemplified by territorial states imposing a certain “sameness” (in Waltz parlance) on the “units” - to functionally autonomous and autopoietically reproduced systems, operating globally, as is suggested by Luhmann (1997) and Teubner (1997).
According to both, understanding these changes requires a new systems theory that no longer uses the part/whole distinction as its central template. Instead, it focuses on the process of boundary drawing by which systems differentiate themselves from their environment and transform, by means of their constitutive “code”, the “irritations” of the outside into elements of their own system. Thus, systems are no longer simply arrangements of pre-existing elements in different configurations, but consist of “autopoietic” processes.
One of the implications of this change in perspective is that neither particular persons nor actions can be attributed exclusively to a single (sub)system, be it the economy, the political system, or “culture”. Instead, the same action reverberates simultaneously in different systems depending on the latter’s constitutive “code”. Thus, a “payment” is an economic action, but it is also simultaneously a political one, if it concerns taxes, or a cultural one, when it entails a donation to the opera. Such a radical change in conceptualization has important repercussions for methodology, theory building, and our understanding of “ontology”, which would lead me far afield if I tried to follow up on them here. Instead, I want to stress only that such a perspective emphasizes process over ontology, and that it is more interested in how systems deal with the conflicts generated in the process of reproduction, instead of examining how a stable equilibrium is reached.
To that extent systems “are” only by being continuously made through the process of differentiation following the logic of autopoiesis. But this means also that there are two critical intersections to which the new systems theory has to attend: one is the conflict created by the interplay of segmentary and autonomously reproducing systems, the other concerns the “irritations” that these different autopoietic systems create for each other. The former interprets this process towards a “world society” in terms of an “evolutionary” achievement, while still recognizing the existence of the segmentary territorial orders cutting across these global systems. Luhmann devoted one of his last works (1997) to this problem, and Teubner, as a legal scholar, has focused more on the latter problem of the mutual “irritation” of autopoietic systems. He sees a “global Bukowina” in the offing and considers any attempt of harmonizing the existing norm or regime collisions as futile. But two conceptual problems remain.
One concerns the imagery of a global Bukowina - that is, the part of the old Austro-Hungarian Empire where a variety of ethnic groups co-existed under the shadow of the emperor as the political figurehead. Is this analogy apt for highlighting the distinctive features of modern modes of governance? Is the process of functional differentiation, such as the dis-embedding of the financial sector from the “real economy”, analogous to the coexistence of several segmented societies sharing the same space? I do not think so. While there is a certain resemblance between the largely autonomous ethnic groups and the functional or free-standing regimes of today, the interactions among the former took place under the shadow of a supreme authority which is precisely lacking in the case of “functional” systems “irritating” each other.
The second problem arises out of the root metaphor of “irritation” that systems use in the process of autopoiesis. If systems are closed - by the act of drawing the boundaries - nothing can get through. As Roberts (1998, 102) once suggested, we have then something like a plane flying through heavy weather. But the plane’s skin serves as a Faraday cage that not only prevents the people inside from falling out, but it also ensures that the lightning cannot destroy or “transform” anything inside (such as the engines or the navigational system). Is this really what is going on when we consider for example the effects of the REACH initiative by the European Union that forces importers of chemicals or chemically treated materials (in practice, virtually everything) not only to disclose components, manufacturing processes, tests, risk- assessments, and so on, but also to bring their products in conformity with the stipulated standards? The simple fact is that it is the particular logic of the EU legislation rather than that of “manufacturing” or of the “economy”, which compels importers to adopt the EU standards, because otherwise they are barred from access to the EU market.
Finally, returning to the fragmentation of the international legal order: without some form of “constitutionalization” - or as I shall argue below a new conception of territorialization - the problems created by “free-standing” regimes are real. They cannot be papered over by juristic tricks, as proposed for example by some proponents of a “world administrative law”, since important issues of legitimacy are touched upon and politics raises its ugly head (Kingsbury, Krisch, and Stewart 2004 ). But in order to understand what is going on, we also have to take leave from the optimistic interpretation of early regime theory and of the judicialization literature. After all, the “growth” of law creating “islands” of “order” in the alleged anarchy can no longer be interpreted simply as a “good thing” because having “more law” is part of the problem and not its solution.
Obviously confusion reigns supreme, and we can only hope to lift the conceptual fog by unpacking some of the issues. Consider in this context the notion of a “regime”. It originated at the Congress of Vienna, where it was used for the internationalization of certain rivers such as the Rhine. The notion of a “freestanding” regime appeared first in the Wimbledon case3 in the interwar years. Here the Permanent Court of Justice considered whether the rules (appended to the Treaty of Versailles), which regulated the use of the Kiel Canal, were sufficient to decide a case or needed supplementation by international law. The Court came to the conclusion that the regime was sufficient and represented therefore a “freestanding regime”.
Although, of course, no regime can be entirely free-standing, since the general norms of treaty law are obviously part of the regime, the term “free-standing” meant originally only that some primary rules regulating the use of the waterway sufficed for that purpose (Simma and Pulkowski 2006). The problem of “free-standing regimes” in more recent times - which fuelled the fragmentation debate in international law - is quite different in that the relative isolation of the regime results from its unity of primary and secondary rules (i.e., derives from the existence of autonomous dispute resolution mechanisms). Thus the WTO devoted to free trade “sees” or phrases an issue in terms of its charter and hence rules out trade restrictions based on, for example, human rights, labor standards, or environmental concerns - the later softening in the Shrimp/Turtle case notwithstanding.
This “fragmentation” has important implications for the role of law If law differs from mere expectations developed in interactions, as it is rather a system of expectations about expectations, conflicts might arise among these secondary expectations, which must be resolved by “courts”. They, in turn, are bound by expectations of how such conflicts are to be decided. Clearly in such tertiary expectations, considerations of the salus publica, or some overarching purposes as indicated by a “constitution”, matter. Only in this way can competing readings of a case as a tax or environmental case, or as a zoning or civil rights issue be decided. But precisely this function cannot be served by free-standing regimes and their adjudicative pronouncements.
Of course there are plenty of proposals to deal with such an embarrassment of riches. One is to “constitutionalize” the UN (Fassbender 1998), but there is little indication that such a move enjoys much support outside of academia, particularly since the representative credentials, particularly of the Security Council, are quite “underwhelming” (Klabbers, Peters, and Ulfstein 2009). Furthermore, as the Kadi case4 showed, some of the “sanctions” imposed on private persons on the basis of non-vetted information violate fundamental principles of the rule of law, and effective remedies are difficult to find.5 This is especially so because there is a widely shared view that each UN organ is entitled to its own interpretation of international law.
But since the UN has several competitors, should one perhaps give priority to the WTO and its effective dispute resolution system? Yet, even the most ardent advocates of such a move admit that this would at a minimum require some incorporation of human rights (never mind ecological concerns or basic distributional issues not only between “countries” but among different generations). The real problems are simply elided by such strategies. Such a constitutionalization move must be related to politics, so that “the people” can understand themselves to be the authors of the laws that courts are supposed to apply To derive everything from “human dignity”, as some human rights lawyers suggest, is either to engage in an imperial project - ever so popular since Cicero when reason and Roman law became in his thought practically synonymous, and which is paralleled more recently in the “best practice” doctrine of the US academy - or simply to miss the point. The crucial questions are: “who shall judge” (quis judicabit) and “in whose name” the abstract principles are selected and applied to concrete cases.6 The tendency to fill the abstract principles of a near “sacralized” conception of human dignity with the specific interpretations taken from one’s familiar way of life, because it allegedly instantiates those ideals best, is not imaginary, as the arguments of the “end of history” show (Kratochwil 2014, especially Chapters 7 and 8).
It seems that together with the territorial state and/or the “nation”, which in modernity is the ultimate source of legitimacy, we have also eliminated “the people” or “the peoples” (as mentioned in the UN Charter) as a legitimating force. Instead, we increasingly invoke “expertise” and ex post “acceptance” (“outcome” legitimacy). But we thereby paper over the problem that such an “acceptance” is mostly based on ignorance and powerlessness in the face of in-transparent “multi-level governance” structures, rather than based on a meaningful “consent”.
Let me be clear about this: the “consent” of the “governed” might have always been a myth rather than an accurate representation of the actual exercise of power. But it is indeed difficult to fathom how democratic politics can simply dispense with it and substitute for it “efficiency”, or even the “welfare” which a priestly class of lawyers and administrators promises to deliver. It is here that re-thinking of the problem of territoriality and of reordering politics has to start. In the next section I want to provide some impulses for such a reflection.